Excerpt:agra tenancy act (ii of 1901), section 201(3) - suit for profits--entry of plaintiff as proprietor in record of rights--presumption--inferential decisions of civil court by reason of res judicata, whether rebut such presumption--adverse revenue court order subsequent to plaint, effect of. - .....civil court that the property in suit here does not belong to the plaintiff. it may be that on a suit brought by either party the judgment in the previous suit may be held to be res judicata and a decision may be given against the plaintiff by reason thereof. that fact, however, in my opinion, cannot prevent the operation of the presumption under section 201(3) of the tenancy act of 1801. it has been held by this court in various rulings that when a civil court has decided the question of proprietary title to the property in suit there is nothing left for the revenue court to presume under the provisions of section 201(3) of the tenancy act of 1901 gobindi v. saheb ram 1 ind. cas. 885 : 6 a.l.j. 138 : 31 a. 2572. this has been subsequently followed in various other rulings of this.....

Judgment:

Dalal, J.

1. The decision of the lower Appellate Court, is somewhat summary. He referred to a deed of gift, when really the gift alleged by the defendants is an oral one. The plaintiff Musammat's name is entered in the village records and on the basis of that entry she sued certain persons for recovery of her share of the profits. The defence was that under a Civil Court decision the plaintiff had been held not to be the owner of the property in suit. This is not accurate. There has been no civil litigation with respect to this property. The civil litigation related to a suit for possession brought by the plaintiff female in the Civil Court against the same defendants in which it was held that a gift of her property had been made by the plaintiff's mother Musammat Mariam in favour of the plaintiff's brother Saif Ullah, That suit, however, related to property in another village, and not to property in the village in the present Revenue Court suit. It is urged that that fin-ding will act as res judicata in the present suit. Whatever considerations there may be, if a suit with respect to this property is brought in the Court of a Munsif, in my opinion, the judgment of the Munsif cannot act as res judicata, in this suit in the Revenue Court, It, has not been decided definitely by any Civil Court that the property in suit here does not belong to the plaintiff. It may be that on a suit brought by either party the judgment in the previous suit may be held to be res judicata and a decision may be given against the plaintiff by reason thereof. That fact, however, in my opinion, cannot prevent the operation of the presumption under Section 201(3) of the Tenancy Act of 1801. It has been held by this Court in various rulings that when a Civil Court has decided the question of proprietary title to the property in suit there is nothing left for the Revenue Court to presume under the provisions of Section 201(3) of the Tenancy Act of 1901 Gobindi v. Saheb Ram 1 Ind. Cas. 885 : 6 A.L.J. 138 : 31 A. 257

2. This has been subsequently followed in various other rulings of this Court. In all those cases, however, there was a definite pronouncement by a Civil Court with respect to the property in suit in the Revenue Court and it was not desired by either party to plead a Civil Court decision by way of res judicata. In my opinion, this Court has removed the presumption only so far as there existed a definite Civil Court decision regarding the property in suit and such decisions should not be permitted to cover any inferential decision of the Civil Court by reason of res judicata. For instance, the circumstances may be such, though I am told that they are not present here that the next Civil suit may be brought in a Court of higher jurisdiction than that of a Munsif, and the principle of res judicata by reason of the difference of Courts may not arise in such subsequent civil suit. I am of opinion that when statute law directs a definite presumption to be drawn it should be drawn, unless, as in cases, already referred to, of this Court, no occasion arises for drawing any presumption.

3. The references by the District Judge to subsequent Revenue Court proceedings are not of any avail either in fact or in law. In fact the Revenue Court order relating to the removal of the plaintiff's name from the village record has been set aside on appeal and in law the decision in the case of Lachman Prasad v. Shitabo Kunwar 59 Ind Cas. 639 : 18 A.L.J. 1008 : 2 U.P.L.R (A.) 386 : 43 A. 177 will apply; that the Revenue Court order subsequent to the presentation of the plaint will not affect the plaintiff's right to sue for the profits for the years during which her name was entered in the village record.

4. In the result, I set aside the decrees of both the Subordinate Courts and remit the suit to the trial Court for further trial of the rest of the issues and decision.